EXHIBIT 99.1
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT AND FORBEARANCE AGREEMENT EXTENSION
This is a Fourth Amendment to Amended and Restated Loan and
Security Agreement and Forbearance Agreement Extension (this "Agreement") made
this __ day of November, 2002, effective October 31, 2002, among HOLIDAY RV
SUPERSTORES, INC., ("Holiday RV" or "Parent") a Delaware corporation, HOLIDAY RV
SUPERSTORES OF SOUTH CAROLINA, INC., a South Carolina corporation, HOLIDAY RV
SUPERSTORES WEST, INC., a California corporation, COUNTY LINE SELECT CARS, INC.,
a Florida corporation, ("County Line"), HALL ENTERPRISES, INC., a Kentucky
corporation, and HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC., a New Mexico
corporation (singularly, a "Borrower" and collectively, "Borrowers"); HOLIDAY RV
RENTAL/LEASING, INC., a Florida corporation, LITTLE VALLEY AUTO & RV SALES,
INC., a West Virginia corporation, HOLIDAY RV ASSURANCE SERVICE, INC., F/K/A
HOLIDAY RV ASSURANCE CORPORATION, a Florida corporation, HALL ENTERPRISES, INC.,
a Kentucky corporation, RECREATION USA INSURANCE CORPORATION, a Florida
corporation, and HOLIDAY RV'S INSURANCE AGENCY, INC., an Arizona corporation
(singularly, a "Guarantor" and collectively "Guarantors"); and BANC OF AMERICA
SPECIALTY FINANCE, INC., a North Carolina corporation ("Specialty") and BANK OF
AMERICA, N.A., a national banking association (the "Bank") (together, "Lender").
RECITALS
WHEREAS, prior to March 8, 2001, Borrowers and Guarantors and
Lender and/or its predecessors were parties to certain credit facilities.
WHEREAS, Borrowers requested an amended and restated credit
facility from Lender, and on about March 8, 2001, Borrowers and Guarantors
entered into that certain Amended and Restated Loan and Security Agreement.
WHEREAS, on or about June 18, 2001, Lender, Borrowers and
Guarantors entered into a First Amendment to the Amended and Restated Loan and
Security Agreement.
WHEREAS, on about January 10, 2002, Lender and Borrowers and
Guarantors entered into that certain Second Amended and Restated Loan and
Security Agreement and Forbearance Agreement.
WHEREAS, on about March 15, 2002, Lender and Borrowers and
Guarantors entered into that certain Third Amended and Restated Loan and
Security Agreement and Forbearance Agreement.
WHEREAS, all capitalized terms used herein and not otherwise
defined shall have the meanings given in the Amended and Restated Loan and
Security Agreement, First Amendment to the Amended and Restated Loan and
Security Agreement, the Second Amendment to the Amended and Restated Loan and
Security Agreement and Forbearance Agreement, and Third Amendment to Amended and
Restated Loan and Security Agreement and Forbearance Agreement (collectively,
the "Amended Loan Agreement").
WHEREAS, pursuant to the terms of the Third Amendment to
Amended and Restated Loan and Security Agreement and Forbearance Agreement (the
"Third Amendment"), all sums due Lender under the Loan Documents became fully
due and payable on October 31, 2002, and at that time, Lenders' obligation to
advance any funds to any Borrowers or forebear from enforcing rights and
remedies also terminated.
WHEREAS, the term "Loan Documents" shall include this
Agreement and the Third Amendment, and Borrowers and Guarantors reaffirm the
Recitals contained therein.
WHEREAS, as of October 31, 2002, the following principal and
non-default interest was due Lender under the Loan Documents:
Principal $16,398,922.00
Unfunded Approvals $1,766,977.00
Interest at non-default rate $119,646.83 (paid 11/1/02)
Due Commitment Fee $100,000.00 (paid 11/1/01)
WHEREAS, the above-stated amounts of principal and interest
plus all other sums due under the Loan Documents, including attorneys' fees and
costs incurred as a result of the expiration of the Third Amendment and
negotiation, drafting and closing of this Agreement, or otherwise shall be
collectively called the "Liabilities." The Liabilities continue to be secured by
the Collateral.
WHEREAS, XXXX Finance Co, LLC (the "Subordinated Creditor"),
Lender, Borrowers, and Guarantors entered an Intercreditor and Subordination
Agreement dated March 15, 2002 (the "Intercreditor Agreement") and
contemporaneously the Subordinated Creditor, Borrowers and Guarantors entered
into various subordinated loan agreements, including a promissory note and
security agreement relating, inter alia, to the Collateral, together with
ancillary documents, including warrants and a registration rights agreement
pertaining to shares issued upon the exercise thereof (the "Subordinated Credit
Documents").
WHEREAS, Xxxxxxx Xxxxx is the beneficial owner of the
Subordinated Creditor.
WHEREAS, Lender has valid, perfected first liens and security
interests in the Collateral.
WHEREAS, as of October 31 2002, the approximate principal
amount of $1,600,000.00 is due and owing under the Subordinated Credit
Documents.
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WHEREAS, the above-stated amounts of principal and interest
plus all other sums due to the Subordinated Creditor under the Subordinated
Credit Documents or otherwise shall be collectively called the "Subordinated
Liabilities."
WHEREAS, on or about March 18, 2002, Xxxxxxx Xxxxx, as trustee
of the Xxxxxxx Xxxxx Living Trust under Trust Agreement dated September 15, 1997
(the "Preferred Shareholder") and Holiday RV entered into a Securities Purchase
Agreement relating to the Series AA-2 Preferred stock of Holiday RV(the "Series
AA-2 Purchase Agreement") together with ancillary agreements, including warrants
and a registration rights agreement (the "Series AA-2 Other Agreements").
WHEREAS, prior to March 18, 2002, the Preferred Shareholder
and Holiday RV had entered into another Securities Purchase Agreement relating
to the Series A Preferred stock of Holiday RV (the "Series A Purchase
Agreement") together with ancillary agreements, including warrants and a
registration rights agreement (the "Series A Other Agreements").
WHEREAS, all sums or amounts due to the Preferred Shareholder
or any other shareholder of Holiday RV from any of the Borrowers or Guarantors
pursuant to the Series AA-2 Purchase Agreement, Series AA-2 Other Agreements,
Series A Purchase Agreement, and Series A Other Agreements, as any of the
foregoing are amended, or otherwise, are collectively called the "Subordinated
Equity Obligations."
WHEREAS, as of October 9, 2002, the Subordinated Creditor,
Holiday RV, the Preferred Shareholder entered into Amendment No. 1 to Loan and
Security Agreement and Related Documents in connection with the Subordinated
Credit Documents, in which the Preferred Shareholder advanced funds to Holiday
RV (the "Subordinated Loan Amendment").
WHEREAS, pursuant to the terms of the Third Amendment, all
sums due Lender under the Loan Documents became fully due and payable on October
31, 2002, and at that time, Lenders' obligation to advance any funds to any
Borrowers or forebear from enforcing rights and remedies also terminated.
WHEREAS, the Preferred Shareholder and Subordinated Creditor
intend to advance additional funds to Holiday RV under another amendment to the
Subordinated Credit Documents in connection with the Borrowers and Guarantors
entering into this Agreement (the "Second Subordinated Loan Amendment"). The
Subordinated Credit Documents, Subordinated Loan Amendment, Second Subordinated
Loan Amendment, and all other agreements or documents evidencing or creating any
obligations from any of the Borrowers or Guarantors to the Subordinated Creditor
or Preferred Shareholder are collectively called herein the "Subordinated Credit
Documents."
WHEREAS AGI Holding Corp., a Delaware corporation ("AGI
Holding"), an affiliate of the Preferred Shareholder and the Subordinated
Creditor, has agreed to make an investment in and subordinated loan to Holiday
RV.
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WHEREAS, Xxxxxxx Xxxxx, the trustee of the Preferred
Shareholder and beneficial owner of the Subordinated Creditor, is also the sole
director, Chairman and beneficial owner of AGI Holding.
WHEREAS, Borrowers and Guarantors have represented to Lender
that they are in the process of attempting to refinance the Loans with one or
more third party lenders and they and the Subordinated Creditor, Preferred
Shareholder, AGI Holding have requested that Lender again temporarily forbear
from enforcing it rights and remedies, notwithstanding the admitted maturity of
the Liabilities, and previous acknowledged defaults, and prior forbearances by
Lender to provide them an opportunity to permit such refinancing.
WHEREAS, Lender is willing to forbear and extend the credit
facility under the Loan Documents on a revolving basis credit on certain terms
and conditions.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Borrowers and Guarantors hereby agree with Lender as follows:
AGREEMENT
ARTICLE I - GENERAL PROVISIONS
1.1. RECITALS. The above Recitals are incorporated herein as
if fully set out below.
1.2. NO NOVATION. This Agreement does not novate or supercede
the Loan Documents and only supplements them, and Borrowers and Guarantors
reaffirm and ratify the terms, conditions and covenants of the Loan Documents,
including but not limited to the Amended Loan Agreement, and the liens and
security interests granted therein and agree that, except as expressly otherwise
provided herein, their terms, conditions, and covenants shall remain in full
force and effect.
1.3. ACKNOWLEDGEMENTS.
(a) Borrowers and Guarantors acknowledge that material
defaults under the Loan Documents have occurred and are
continuing and that they have been given proper notice of the
defaults under the Loan Documents and that Lender's entering
into this Agreement shall not constitute waiver or excuse of
the same by Lender.
(b) Borrowers and Guarantors acknowledge and agree that,
by virtue of the occurrence of such defaults and the maturity
of the Liabilities, Lender would be entitled to immediate
possession of the Collateral or to foreclose the same, and to
sell, lease, liquidate or otherwise dispose of such Collateral
as permitted by the Loan Documents and this Agreement and
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applicable law and apply the proceeds of such disposition to
the Liabilities of Borrowers or Guarantors to Lender under
their respective Loan Documents without regard to any claim
for marshalling or the application of any election of remedies
principles, including but not limited to the "single action
rule" or "security first" rule of any particular state.
(c) All amounts outstanding under the Loan Documents and
this Agreement shall be and are secured by a first lien and
security interest in all of the property pledged to Lender by
the Borrowers and Guarantors, including but not limited to the
Collateral, Pledged CD (until it is liquidated as contemplated
herein), Deposit Accounts, Inventory, Equipment, Fixtures,
Accounts, Chattel Paper, and the replacements, substitutions,
additions and proceeds thereof. The parties acknowledge that
the Las Cruces Property and Tampa Property no longer are
collateral for the obligations under the Loan Documents due to
the previous release of the same by Lender in exchange for
certain payments.
1.4. RELEASE AND WAIVER. Borrowers and Guarantors acknowledge
and agree that the obligations of Borrowers and Guarantors under the Loan
Documents are the valid and binding obligations of each such Borrower and
Guarantor. Further, each of Borrowers and Guarantors represent and warrant that,
as of the date hereof, there is no claim, counterclaim, setoff, or defense to
the Loan Documents or Lender's exercise of any right or remedy available to
Lender under any Loan Documents or at law or in equity. Borrowers and Guarantors
waive and affirmatively agree not to allege or otherwise pursue any and every
defense, affirmative defense, counterclaim, cause of action, setoff or other
right that they have or may have as of the date hereof, whether known or
unknown, legal or equitable, including, without limitation, any contest of (a)
any defaults; (b) any provisions of any Loan Documents; (c) the right of Lender
to all of the Collateral and all products and proceeds thereof; (d) the security
interest of Lender in any property, whether real or personal, tangible or
intangible, or any right or other interest, now or hereafter arising in
connection with the Collateral; or (e) the conduct of Lender in administering
any financing arrangement by and among Borrowers, Guarantors and Lender, or any
of them.
1.5. CORPORATE AUTHORIZATION. Each of Borrowers and Guarantors
represents and warrants that it has taken all corporate action, including any
approval of its respective shareholders and directors, necessary to its
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the performance of their respective obligations
hereunder, and each of them has entered into this Agreement fully understanding
its terms and conditions and voluntarily and without duress and with the advice
of counsel.
[Remainder of Page Intentionally Left Blank]
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ARTICLE II - FORBEARANCE BY LENDER
2.1. GENERALLY. Subject to strict compliance by Borrowers and
Guarantors with the terms of this Agreement and there being no further material
defaults under the Loan Documents and none of Borrowers or Guarantors have
commenced or have commenced against them any insolvency proceeding or have
instituted against Lender any legal proceedings, Lender agrees to forebear from
enforcing any of its rights and remedies through December 13, 2002 at 5:00 p.m.
(eastern standard time) (the "Extension Date"). Absent Lender's execution of a
written agreement further extending the forbearance beyond the Extension Date
(Borrowers and Guarantors acknowledge that Lender has no obligation whatsoever
to extend the same), all sums due and owing Lender at that time, including all
amounts due under the Loan Documents and this Agreement shall be fully due and
payable without further notice or demand and Lender shall be entitled to
exercise all of its rights and remedies under the Loan Documents, this
Agreement, at law and in equity. However, the forbearance provided under this
Agreement shall automatically terminate for the same reasons provided in the
Amended Loan Agreement for termination of prior forbearances or upon breach of
the this Agreement, if there is any material adverse change in the financial
condition of the Borrowers and Guarantors from their financial condition as of
October 31, 2002, if bankruptcy or other insolvency proceedings are commenced by
or against any of the Borrowers and Guarantors, or if any other floor plan
lender or purchase money secured party undertakes any action which materially
affects any of the Borrowers and Guarantors' assets or business operations.
2.2. WAIVER OF DEFAULT INTEREST. Provided no further default
under the Loan Documents or a breach of this Agreement occurs and the
Liabilities are paid in full on or before the Extension Date, Lender waives
right to assess and collect default interest due to the defaults and failure to
pay all sums when due on any prior Termination Date as defined in the Amended
Loan Agreement.
ARTICLE III - AMENDMENTS TO LOAN DOCUMENTS
3.1. DEFINITIONS.
(a) The term "20,000,000" in Article III, Section 3.1 (a)
titled "Commitment" is changed to "18,165,899.00."
(b) However, this amount does not reflect the (i)
application of the remaining amount of the CD pledged by the
Borrowers to Lender (approximately $515,000.00), which
application is authorized by the November 1, 2002, forbearance
extension letter agreement and reaffirmed hereby (the "CD
Reduction"), or the (ii) $4.3MM Reduction (defined below). The
CD Reduction and $4.3MM Reduction shall occur before or at the
time of the execution of this Agreement.
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3.2. FINANCIAL COVENANTS. From and after the date hereof,
Section 6.01 of the Amended and Restated Loan and Security Agreement is amended
as follows:
6.01. FINANCIAL COVENANTS
(a) As of November 1, 2002, and at all times thereafter, on a
consolidated basis, the Borrowers and the Subsidiaries shall maintain a minimum
Tangible Net Worth of not to exceed negative $8,770,000.00.
(b) As of November 1, 2002, and at all times thereafter, on a
consolidated basis, the Borrowers and the Subsidiaries shall maintain the ratio
of current assets to current liabilities, determined in accordance with GAAP, at
least equal to 0.85 to 1.00.
3.3. CAP ON LEASES AND SUBORDINATED DEBT. From and after the
date hereof, Section 6.02 of the Amended and Restated Loan and Security
Agreement is amended as follows:
6.02. DEBT; OPERATING LEASES. Borrowers shall not incur, assume or
be liable in any manner for any Debt, except (a) Debt under the Loan Papers and
existing Debt shown on Exhibit A to the Amended and Restated Loan and Security
Agreement (to the extent any such Debt listed in Exhibit A has been satisfied,
neither the Borrowers nor Guarantors shall re-incur such Debt) or substitutions
thereof subject to the limitations hereof and of Section 6.04; provided,
however, County Line shall not incur said substitute Debt for new Inventory from
any lender other than Lender absent full satisfaction of all sums due Lender
from Advances to County Line , and, (b) excluding County Line (which is
addressed below in Section 6.045), future Debt to another floor plan lender
above the current amounts shown on Exhibit A incurred by a particular Borrower
which is a Subsidiary to purchase Inventory solely for that particular Borrower;
provided said additional Debt results in the complete and permanent reduction of
the obligations of that particular Borrower to Lender under this Agreement, (c)
Capital Leases and Debt incurred to acquire equipment used in Borrowers'
business (including refinancing thereof), and Debt subordinated to repayment of
amounts owing hereunder on terms satisfactory to Lender, and otherwise
acceptable to Lender in its sole discretion in an aggregate amount in excess of
$50,000.00, and (d) trade payables incurred and paid in the ordinary course of
business. Borrowers and Guarantors shall not enter into or be a party to
Operating Leases requiring total rental payments during any fiscal year in
excess of fifty thousand dollars ($50,000.00) in the aggregate, including
sale-leaseback transactions and other real estate leases.
Notwithstanding the foregoing, Holiday RV may incur loans or advances,
not in excess of the aggregate amount of $5,100,000 (including sums already
advanced) from the Subordinated Creditor, Preferred Shareholder, AGI Holding or
Xxxxxxx Xxxxx under the Subordinated Credit Documents or otherwise, without the
Bank's prior written consent. The sum of $1,600,000.00 was funded in March 2002,
and thereafter the sum of $2,430,000.00 has been advanced such that as of this
date only the amount of $70,000 is available to be advanced to Holiday RV under
the restrictions of this provision.
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3.4. Section 3.6 of the Third Amendment is amended as follows:
DIVIDENDS AND DISTRIBUTIONS; SUBORDINATION. Lender does
not consent to the payment of dividends or other distributions to the holders of
the Preferred Stock of the Parent (the "Preferred Dividends"), including but not
limited to the Series A and Series AA-2 Preferred Stock, and no such Preferred
Dividends or dividends or distributions to any other shareholder shall be paid
pursuant to the Series A Purchase Agreement, Series A Other Agreements, Series
AA-2 Purchase Agreement, Series AA-2 Other Agreements or otherwise during this
forbearance extension period provided by this Agreement or until Lender has been
paid in full in accordance with the Loan Documents, including this Agreement,
except for ordinary course salary and benefits currently being paid to employees
of the Borrowers or Guarantors. In addition, neither the Borrowers nor
Guarantors shall make any other payments of any nature to the Subordinated
Creditor, AGI Holding, the Preferred Shareholder or any other shareholder during
this forbearance extension period provided by this Agreement or until Lender has
been paid in full in accordance with the Loan Documents, including this
Agreement, except to the extent a shareholder receives ordinary course salary
and benefits currently being paid to employees of the Borrowers or Guarantors.
Further, any disagreement, breach, default, or other dispute between or among
any of the Borrowers, Guarantors, Subordinated Creditor, Preferred Shareholder,
or AGI shall not affect in any way the rights of Lender under this Agreement or
the other Loan Documents.
3.5. PERMANENT REDUCTION OF DEBT. For valuable consideration,
including but not limited to the receipt of warrants and certain payments, AGI
Holding and the Subordinated Creditor have agreed to make subordinated loans on
certain terms and conditions to Holiday RV in the respective principal amounts
of $3,300,000.00 and $1,000,000.00 (the "$4.3MM Reduction") which funds shall be
used to permanently reduce the Liabilities to Lender under the Loan Documents.
Upon the application of the $4.3MM Reduction and the CD Reduction, the amounts
available to the Borrowers and Guarantors to borrow under the credit facility of
the Loan Documents shall be reduced on a permanent basis by that amount, and
they shall not be permitted to borrow any portion of that amount thereafter.
ARTICLE IV CONDITIONS PRECEDENT
4.1. GENERALLY.
In addition to the other conditions provided for herein,
Lender's obligation to forbear or advance funds hereunder is subject to (a)
Borrowers and Guarantors having satisfied (or caused the same to be satisfied or
modified or waived by Lender in writing) the conditions contained in the
November 1, 2002, signed forbearance extension letter agreement, and Lender has
received all of the payments required thereby (Lender has agreed to accept a
permanent reduction of the Liabilities in the amount of $4,300,000.00 in lieu of
the letters of credit and/or guaranty of Xxxxxxx Xxxxx as required by the
November 1, 2002, letter agreement), (b) there being no material adverse change
to the financial condition of Borrowers and Guarantors from October 31, 2002
through the Extension Date, (c) the Loan Documents and this Agreement remaining
in full force and effect and the security interests created thereunder and
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hereunder remaining valid and perfected at all times, (d) the receipt by Lender
on or before the time of execution of this Agreement of the written consent to
this Agreement and the ratification of subordination from the Subordinated
Creditor under the Intercreditor Agreement, (e) the receipt by Lender on or
before the time of execution of this Agreement of the written consent to this
Agreement by AGI Holding and its joinder to the Intercreditor Agreement with
respect to any liabilities owed by any of the Borrowers or Guarantors under the
Subordinated Credit Documents or otherwise, (f) the receipt by Lender on or
before the time of execution of this Agreement of the joinder by the Preferred
Shareholder and Xxxxxxx Xxxxx, individually, to the Intercreditor Agreement with
respect to any liabilities owed by any of the Borrowers or Guarantors under the
Subordinated Credit Documents or otherwise; (g) the receipt by Lender on or
before the time of execution of this Agreement of the written consent of the
Preferred Shareholder and Xxxxxxx Xxxxx, individually, for the Subordinated
Equity Obligations, and if requested, the consent to this Agreement and
subordination of the other holder of Series A Preferred Stock of Holiday RV, and
(h) the payment of the fees and costs of Lender's counsel incurred in connection
with the preparation and negotiation of this Agreement. Any consent and joinder
contemplated by this Agreement must be in the in the form and content acceptable
to Lender. Upon or before the execution of this Agreement, the Borrowers and
Guarantors shall have caused the $4.3MM Reduction and the CD Reduction to be
made to Lender.
ARTICLE V - MISCELLANEOUS
5.1. LOAN FEES. In consideration of this Amendment, Borrowers
and Guarantors shall pay to Lender a loan fee (the "Fee") of $200,000, payable
as follows: (a) $50,000 shall be payable to Lender upon the execution and
delivery to Lender of this Agreement; (b) $150,000 shall be payable to Lender on
or before the Extension Date (the "Extension Date Fee"). All of the foregoing
fees have been fully earned by Lender on the date hereof. Notwithstanding the
foregoing, however, Lender agrees that if the Loan is repaid in full prior to
the Extension Date, and no default hereunder has occurred and is continuing,
Lender shall waive the Extension Date Fee. The payment of the Extension Date Fee
is secured by Lender's lien in the Collateral.
5.2. ATTORNEY FEES AND COSTS. Borrowers and Guarantors agree
to be liable for the actual attorneys' fees and expenses (including but not
limited to audit fees, appraisals, security, receiver fees, inspection and
collateral inspection and monitoring fees, and any other out-of-pocket expenses
incurred by Lender in the administration, processing or monitoring of the credit
facility) incurred by Lender: (a) from March 23, 2002 through the execution of
this Agreement in connection with the defaults, negotiating, drafting, and
closing this Agreement up to the amount of $ 20,000.00 ("Lender's Expenses"),
and (b) after execution of this Agreement in connection with the enforcement of
Lender's rights and remedies, including fees and expenses incurred in collecting
or liquidating the Collateral. Borrowers and Guarantors agree to pay Lender's
Expenses at the closing hereof or immediately upon billing by Lender.
5.3. JOINDER BY GUARANTORS. Guarantors consent to and join in
this Agreement and agree to be bound by its terms and conditions.
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5.4. BINDING EFFECT. This Agreement constitutes the entire
understanding and agreement between the parties hereto, and shall be binding on
the successors and assigns of each of Borrowers and Guarantors and shall inure
to the benefit of Lender and its successors and assigns.
5.5. COUNTERPARTS. This Agreement may be executed in
counterpart and each of the counterparts shall be effective and enforceable.
5.6. WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE ANY RIGHT
TO JURY TRIAL WITH RESPECT TO ANY DISPUTE ARISING OUT OF THIS AGREEMENT AND
AGREE THAT ANY LITIGATION ARISING OUT OF OR PERTAINING TO THIS AGREEMENT SHALL
BE BROUGHT EXCLUSIVELY IN THE CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLORIDA
EXCEPT WITH RESPECT TO ACTIONS REQUIRED TO BROUGHT IN THE JURISDICTION WHERE
COLLATERAL IS LOCATED FOR PURPOSES OF ENFORCING RIGHTS AGAINST THAT COLLATERAL.
5.7. INDEMNIFICATION BY BORROWERS. BORROWERS AND GUARANTORS,
JOINTLY AND SEVERALLY, AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER, ITS
AFFILIATES, AND ALL OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES,
AGENTS, SUCCESSORS, ATTORNEYS AND ASSIGNS, FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH
MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN ANY WAY
RELATING TO OR ARISING OUT OF ANY LOAN PAPERS, ANY TRANSACTION RELATED HERETO OR
THERETO, OR ANY ACT, OMISSION OR TRANSACTION OF ANY BORROWER, ANY SUBSIDIARY,
ANY GUARANTOR OR ANY OF THEIR AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES OR REPRESENTATIVES; PROVIDED, HOWEVER, THAT BORROWERS SHALL
NOT INDEMNIFY, DEFEND AND HOLD HARMLESS ANY INDEMNIFIED PERSON FOR LOSSES OR
DAMAGES THAT COMPANY PROVES WERE CAUSED BY SUCH PERSON'S WILLFUL MISCONDUCT,
GROSS NEGLIGENCE OR OTHER NEGLIGENCE. LENDER SHALL NOT BE LIABLE TO ANY BORROWER
OR ANY SUBSIDIARY OR ANY GUARANTOR FOR ANY CONSEQUENTIAL DAMAGES. This indemnity
shall survive repayment of Borrowers' obligations to Lender.
5.8. BANKRUPTCY. AS A MATERIAL INDUCEMENT TO THE AGREEMENTS OF
LENDER IN THIS AGREEMENT, BORROWERS AND GUARANTORS AGREE THAT IN THE EVENT THAT
ANY BORROWER OR ANY GUARANTOR IS THE SUBJECT OF ANY INSOLVENCY, BANKRUPTCY,
RECEIVERSHIP, DISSOLUTION, REORGANIZATION OR SIMILAR PROCEEDING, FEDERAL OR
STATE, VOLUNTARY OR INVOLUNTARY, UNDER ANY PRESENT OR FUTURE LAW OR ACT, LENDER
IS ENTITLED TO THE AUTOMATIC AND ABSOLUTE LIFTING OF ANY AUTOMATIC STAY AS TO
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THE ENFORCEMENT OF ITS REMEDIES UNDER THIS AGREEMENT AGAINST ANY COLLATERAL OR
SECURITY INTEREST GRANTED TO LENDER OR AGAINST ANY ACCOUNT OF ANY BORROWER OR
ANY GUARANTOR INCLUDING SPECIFICALLY, BUT NOT LIMITED TO THE STAY IMPOSED BY
XXXXXXX 000 XX XXX XXXXXX XXXXXX BANKRUPTCY CODE, AS AMENDED, OR ANY SIMILAR
STATE LAW AND, TO ACCOMPLISH SUCH PURPOSES, BORROWERS AND GUARANTORS AGREE TO
THE FULL EXTENT PERMITTED BY LAW NOT TO SEEK TO TAKE ADVANTAGE OF ANY
APPRAISEMENT, VALUATION, STAY OR EXTENSION LAW NOW OR HEREAFTER IN FORCE, IN
ORDER TO PREVENT OR HINDER THE ENFORCEMENT OF THIS AGREEMENT OR THE PROVISIONS
OF THIS AGREEMENT. BORROWERS AND GUARANTORS HEREBY CONSENT TO THE IMMEDIATE
LIFTING OF ANY SUCH AUTOMATIC STAY, AND WILL NOT CONTEST ANY MOTION BY LENDER TO
LIFT SUCH STAY. BORROWERS AND GUARANTORS AGREE TO EXECUTE ALL DOCUMENTATION
NECESSARY TO WAIVE OR PROVIDE FOR RELIEF FROM ANY STAY PROVISIONS UNDER ANY
FEDERAL OR STATE LAW.
5.9. RELEASE OF CLAIMS. AS A MATERIAL INDUCEMENT TO THE
AGREEMENTS OF LENDER IN THIS AGREEMENT, BORROWERS AND GUARANTORS, ON BEHALF OF
ITSELF AND ITS SUCCESSORS AND ASSIGNS, DO HEREBY FULLY RELEASE AND FOREVER
DISCHARGE LENDER, THEIR RESPECTIVE SUCCESSORS IN INTEREST, ASSIGNS, OFFICERS,
DIRECTORS, STOCKHOLDERS, AGENTS, SERVANTS, EMPLOYEES, SUBSIDIARIES AND
AFFILIATES, OF AND FROM ANY AND ALL PAST, PRESENT OR FUTURE CLAIMS, DEMANDS,
OBLIGATIONS, ACTIONS, CAUSES OF ACTION, RIGHTS, DAMAGES, COSTS, EXPENSES AND
COMPENSATION OF ANY NATURE WHATSOEVER, WHETHER BASED ON A TORT, CONTRACT,
STATUTORY LIABILITY OR ANY OTHER THEORY OF RECOVERY, WHICH ANY BORROWER OR ANY
GUARANTOR NOW HAS OR MAY HEREAFTER ACCRUE OR OTHERWISE ACQUIRE, FOR OR BY REASON
OF ANY MATTER, CAUSE OR THING WHATSOEVER OCCURRING UP TO THE DATE OF THIS
AGREEMENT.
5.10. POST-CLOSING REQUIREMENT. Borrowers or Guarantors shall
cause Arc Capital to execute and deliver to Lender a consent to this Agreement
in the form acceptable to Lender on or before November 18, 2002.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
"BORROWERS"
HOLIDAY RV SUPERSTORES, INC.
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
11
HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
HOLIDAY RV SUPERSTORES WEST, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
COUNTY LINE SELECT CARS, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
HALL ENTERPRISES, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
"GUARANTORS"
HOLIDAY RV RENTAL/LEASING, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
12
LITTLE VALLEY AUTO & RV SALES, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
HOLIDAY RV ASSURANCE SERVICE, INC., F/K/A
HOLIDAY RV ASSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
RECREATION USA INSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
HOLIDAY RV'S INSURANCE AGENCY, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
HALL ENTERPRISES, INC.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: CEO and President
-----------------------------
13
"LENDER"
BANC OF AMERICA SPECIALTY FINANCE, INC.
By /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
------------------------------
Title: Sr. Vice President
-----------------------------
BANK OF AMERICA, N.A.
By /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
------------------------------
Title: Sr. Vice President
-----------------------------
14
